Forty-five years ago yesterday, capital punishment was effectively abolished in the United States. In a contentious 5-4 decision, the Supreme Court ruled in Furman vs. Georgia that arbitrary and inconsistent application of the death penalty constituted cruel and unusual punishment, effectively invalidating state laws providing for the measure and reducing all existing death sentences to life imprisonment.
Of course, the decision was short-lived, as a mere four years later the Court reaffirmed the constitutionality of capital punishment in Gregg vs. Georgia. But the issue of capital punishment remains salient and controversial today, especially as it has become increasingly tied to another seminal cultural issue with roots in an early-1970s Supreme Court decision: abortion. Indeed, in pro-life circles, it’s become fashionable lately to pair opposition to abortion with equal condemnation of capital punishment. The tactical thinking, it seems, is that since these two life issues—abortion and capital punishment—are generally (but not always) opposed by partisans of different stripes, uniform opposition provides a shield against charges of partisanship.
The problem with equating capital punishment with abortion, though, is that it’s a false comparison. And, furthermore, equivocating the fundamental difference between the two clouds our national moral sensibility, effectively harming both the argument against abortion and against capital punishment.
The in vogue “consistent life ethic” argument goes something like this: Life begins at conception. Intentionally taking human life is wrong. Therefore, any intentional act that ends a human life is wrong, whether it’s through abortion or through a duly enacted punishment of the state. And since a primary function of government is to protect the lives of its citizens, the state should clearly prohibit all intentional killing—including both abortion and capital punishment.
But the argument, when taken to its logical conclusion, is far more radical than most “consistent life ethic” adherents would concede. For if the bedrock principle on which all pro-life arguments hinge is that “intentionally taking human life is wrong,” we’ve arrived in a pacifist utopia. This rules out many actions beyond just abortion and capital punishment that would not normally be lumped in with the pro-life cause, self-defense and (just) wars chief among them. It’s possible some “consistent life ethic” proponents would be willing to embrace this pacifist conclusion in theory—but doubtful in practice.
Instead, we must emphasize the moral—and, by extension, legal—distinction between innocent human life and guilty human life. The state has a duty to protect the lives of those within its sovereignty so long as they do not forfeit their innocence by, for example, taking or threatening the life of another, or enlisting in a foreign army.
It must be stressed that this innocent-guilty distinction is not a de facto argument for capital punishment. (Indeed, there are many signs that the American capital punishment system is broken and needs reform—or perhaps abolition.) There should be extreme scrutiny whenever the state exercises its awesome power to take human life, whether through the criminal justice system or war (the latter of which has been the topic of much-needed discussion in this space). And, as the tragic cases of those wrongly convicted show, the business of determining guilt is hardly an exact science, further clouding the justifiability of continued capital punishment.
But the innocent-guilty distinction does maintain a de facto argument against abortion. If we are to apply extreme scrutiny when justifying deadly force in the case of self-defense, criminal justice, or any other scenario in which innocence is absent, it goes without saying that arguably the most innocent person of all—the baby in the womb—should receive legal protection.
In fact, divorcing the abortion and death penalty issues actually strengthens the cause of those opposed to each. All too often, this unhappy marriage has led to charges of inconsistency from both sides of the aisle. By couching death penalty opposition in traditional “right to life” terms, we’re deprived of an honest debate over how the state wields power in the criminal justice system. By charging pro-abortion death penalty opponents of hypocrisy, pro-lifers distract from the abortion issue by needlessly inviting charges of naked partisanship. There is nothing to be gained for either side by demanding uniform opposition to these two unrelated issues.
We can and should have a serious debate over the continued use of the death penalty. But to equate the power of a duly enacted political authority to protect its citizens with the taking of innocent human life obfuscates the issues underlying each of these cultural watersheds. It’s time that we treat abortion and capital punishment as the separate issues that they are.
Emile Doak is director of events & outreach at The American Conservative.